Samootin v Wagner

Case [2008] FCA 1066

FEDERAL COURT OF AUSTRALIA

Samootin v Wagner [2008] FCA 1066

BANKRUPTCY – application to annul – order that “ought not to have been made” – a “heavy burden” – previous applications refused – exercise of discretion – previous proceedings in other courts

Bankruptcy Act1966 (Cth)
Federal Court Rules 1979 (Cth), O 33, r 12(1)

Boles v Official Trustee in Bankruptcy [2001] FCA 639, 183 ALR 239 cited
BP Australia Pty Ltd v Nyran Pty Ltd [2003] FCA 834 followed
Bulic v Commonwealth Bank of Australia Ltd [2007] FCA 307 followed
Calverley v Green (1984) 155 CLR 242 cited
Delph Sing v Wood [1918] HCA 69, 25 CLR 497 considered
Heinrich v Commonwealth Bank of Australia [2003] FCAFC 315 followed
Pollock v Deputy Commissioner of Taxation (1994) 94 ATC 4148 followed
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 followed
Re Calderon (Unreported, Federal Court of Bankruptcy, Riley J, 31 May 1977) cited
Re Deriu (1970) 16 FLR 420 considered
Re Frank; Ex parte Piliszky (1987) 16 FCR 396 considered
Re Papps; Ex parte Tapp (1997) 78 FCR 524 followed
Re Williams (1968) 13 FLR 10 considered
Rigg v Baker [2006] FCAFC 179, 155 FCR 531 followed
Samootin v Insolvency & Trustee Service Australia [2007] FCA 1596 cited
Samootin v Official Trustee in Bankruptcy [2007] FCA 1618 cited
Samootin v Official Trustee in Bankruptcy [2008] FCA 914 cited
Samootin v Shea (No 2) [2003] NSWSC 695 cited
Samootin v Shea (No 3) (Unreported, NSWCA, Handley, Sheller and Ipp JJA, 3 June 2004) cited
Samootin v Shea [2005] HCA Trans 181 cited
Samootin v Shea [2005] HCA Trans 732 cited
Samootin v Shea [2005] NSWCA 398 cited
Samootin v Wagner [2005] FMCA 1512 cited
Samootin v Wagner [2006] FCA 689 cited
Samootin v Wagner [2006] FCA 945 cited
Samootin v Wagner [2007] FCA 1366 cited
Samootin v Wagner [2007] FMCA 1100 cited
Wagner v Samootin [2006] FMCA 688 cited

Hassall D A, Annulment of Bankruptcy and Review of Sequestration Orders (1993) 67 ALJ 761

ALEXANDRA SAMOOTIN v GISELLE MONIKA WAGNER AND ORS

NSD 589 OF 2008

FLICK J
21 JULY 2008
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 589 OF 2008

BETWEEN:

ALEXANDRA SAMOOTIN
Applicant

AND:

GISELLE MONIKA WAGNER
First Respondent

ADRIAN HOLMES
Second Respondent

OFFICIAL TRUSTEE IN BANKRUPTCY
Third Respondent

JUDGE:

FLICK J

DATE OF ORDER:

21 JULY 2008

WHERE MADE:

SYDNEY

THE ORDERS OF THE COURT ARE:

1.The Amended Application as filed on 16 June 2008 be dismissed.

2.The Applicant to pay the costs of the Respondents on an indemnity basis.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 589 OF 2008

BETWEEN:

ALEXANDRA SAMOOTIN
Applicant

AND:

GISELLE MONIKA WAGNER
First Respondent

ADRIAN HOLMES
Second Respondent

OFFICIAL TRUSTEE IN BANKRUPTCY
Third Respondent

JUDGE:

FLICK J

DATE:

21 JULY 2008

PLACE:

SYDNEY

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AGLC
Samootin v Wagner [2008] FCA 1066
Case
[2008] FCA 1066
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the matter of Samootin v Wagner arose involving Ms Samootin as the applicant and various respondents. Ms Samootin brought an amended application, asserting that she had suffered legal and civil abuse, which she claimed justified the continuation of her litigation. The respondents sought to dismiss the application and argued that it was an abuse of process. They also applied for orders to preclude Ms Samootin from bringing further proceedings.

The court was tasked with determining whether Ms Samootin's claims of abuse were substantiated and if her continued litigation was warranted. Additionally, the court had to consider the appropriate costs orders and whether an order precluding further proceedings should be made. The legal issues involved the assessment of the merits of the amended application and the fairness of extending further opportunities to Ms Samootin, given her history of repeated litigation of the same issues.

The Federal Court found that Ms Samootin's claims of abuse were without merit and that she had been afforded ample opportunities to pursue her claims. The court noted that the respondents had repeatedly shown patience and indulgence towards her. It was concluded that there had been no miscarriage of justice, and the continued litigation was considered an abuse of process. Consequently, the amended application was dismissed, and Ms Samootin was ordered to pay the respondents' costs on an indemnity basis. While the court acknowledged the need for finality, it decided against making an order precluding further proceedings at that time.

The final orders of the court were that the amended application be dismissed, Ms Samootin was to pay the respondents' costs on an indemnity basis, and no order precluding further proceedings would be made.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

FLICK J
The submission that Ms Samootin has been exposed to “legal and civil abuse” is totally without merit.CONCLUSIONS It is thus considered that the Amended Application should be dismissed. It is simply an abuse of process. A review of the reasons for decisions of both the Supreme Court and this Court only reveals Ms Samootin being extended every opportunity to pursue her claims and every indulgence repeatedly being extended to her by the various judicial officers before whom she has appeared. Although Ms Samootin has repeatedly claimed that there has been a “miscarriage of justice”, no such “miscarriage” has been revealed; indeed, the repeated exposure of the Respondents to that litigation is itself a subject of real concern. Given the repeated litigation of the same issues, it is further considered that Ms Samootin should be ordered to pay the costs of the Respondents in the present proceeding on an indemnity basis. A further order precluding Ms Samootin from bringing further proceedings has also been sought. Although the time when such an order should be made may rapidly be approaching, it is not considered that such an order should now be made. It may be noted that a like application was made to Jacobson J in October 2007 and then also declined: Samootin v Official Trustee in Bankruptcy [2007] FCA 1618 at [22]. After the hearing on 4 July 2008 further material was filed by Ms Samootin. The matter was accordingly relisted on 16 July 2008 in order that the Respondents could be given copies of this further material and to determine whether they opposed that further material being considered. There was no opposition and the further material was considered. Ms Samootin was then informed, however, that after 16 July 2008 no further material would be considered. Ms Samootin has been extended every opportunity to place before the Court such material as she wanted to be taken into account. There is an obvious need for there to be finality in the presentation of both the evidence and submissions which any party, including an unrepresented party, wants considered. Notwithstanding that, a further Affidavit was in fact filed on 17 July 2008. With the concurrence of the Respondents, this further Affidavit has also been read and considered. ORDERS The orders of the Court are:1.The Amended Application as filed on 16 June 2008 be dismissed.2.The Applicant to pay the costs of the Respondents on an indemnity basis.

Ratio Decidendi

Legal Principle Established

Established by: FLICK J

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